In re CHARLISSE C.,

Filed 4/23/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Story continued from Part III..

III. Discussion

1. Standard of Review

In People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144, our Supreme Court set forth the standard of review for a disqualification motion as follows: Generally, a trial courts decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial courts express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial courts factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial courts discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial courts determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial courts exercise of discretion. [Citation.] (See also City and County of San Francisco v. Cobra Solutions, Inc., supra, 38 Cal.4th at p. 848.)

Contrary to the centers argument, this order under review is not subject in its entirety to de novo review. Many of the factual issues are disputed. For example, Ms. Krinskys declarations assert no violation of ethical walls has occurred. By contrast, the declarations submitted by the mother dispute Ms. Krinskys denials in wide-ranging respects. No doubt, some matters are undisputed but as to others, the inferences to be drawn are the evidence itself is in conflict. This case is unlike People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at page 1144 where the key factsthe existence of an counsel relationship and the discussion with the client concerning the litigationwere undisputed. The centers argument that this entire case is subject to de novo review has no merit.

2. The facts viewed in a light most favorable to the disqualification order

The following constitutes substantial evidence the separate nature of the units providing legal representation did not exist at a time the mother was represented by the center. The focus of the center, which formerly represented the mother, is now on representation of children and not parents. According to Ms. Krinsky: [T]he old tripartite structure of [Dependency Court Legal Services, Inc.] (with three semi-autonomous divisions of relatively equal size) which was established when [Dependency Court Legal Services, Inc.] represented both parents and children to enable the organization to represent three parties with conflicting interests at any given time became outdated and was no longer necessary to carry out the mission of [the center]. In accordance with the recommendations of a hired consultant, the center, with the approval of its board of directors, concluded that rather than having the aforementioned three separate law firms there should be a core firm with two conflict units. The former three firms each had its own autonomous director. As previously noted, the former three-firm-structure was imposed as a condition of the January 22, 1990 contract with the County of Los Angeles Board of Supervisors. However, the July 1, 2005 contract with the Administrative Office of the Courts did not require the maintenance of up to three separate law firms to provide representation in dependency matters.

There was evidence that, in 2003, while the center represented the mother, Ms. Krinsky attempted to have a staff attorney in unit 2 of the center move to quash a subpoena involving a child who was a party in a federal action. Ms. Krinsky urged the staff attorney to move to quash the subpoena because it would not look good if the center was not cooperating with the department. While the center represented the mother, Ms. Krinsky stopped an attorney from filing Code of Civil Procedure section 170.6 affidavits against a bench officer in cases calendared in the courtroom where the lawyer was assigned. Ms. Krinsky then imposed a policy on all three offices to require her personal approval before blanket or class of cases Code of Civil Procedure 170.6 affidavits could be filed. Ms. Krinsky did not withdraw the policy until nearly one year later.^[1]

There was evidence Ms. Krinsky had access to or obtained confidential information from the different units on several occasions. In the spring of 2003, while the center represented the mother, Ms. Krinsky asked one of Mr. Shermans lawyers case specific questions about a pending matter. According to Mr. Sherman, the center, through Ms. Mandels unit 3 firm, was representing a sibling of his offices client. There was a conflict of interest between the sibling and Mr. Shermans offices client. Ms. di Donato declared that in 2002 and 2004, Ms. Krinsky asked her case specific questions about no less than 15 cases. Mr. Sherman and Ms. Fragasso declared that, in the spring of 2003, Ms. Krinsky surreptitiously secured access to their law firms confidential e-mails. As noted, Mr. Shermans declaration states: In approximately June of 2003 it was discovered that Ms. Krinsky had surreptitiously had our computer administrator put her [e-mail] address on each of the intraoffice confidential [e-mails] of the three law firms. . . . When informed of the impropriety of this breach of confidentiality, Ms. Krinsky explained that she thought it was important for her as the head of [the center] to know what was being discussed within each of the three offices. As noted, Ms. Fragasso declared: In early summer of 2003, I discovered that Ms. Krinsky had included herself in each of these lists without informing the law firm directors of her action. . . . When Ms. Krinsky returned to the office and [Ms.] Mandel and I informed her of our concern, she was initially defensive and dismissive of our concern . . . .

In 2005, Ms. Krinsky wanted to transfer cases from the conflict units, units 2 and 3, to the core firm when an attorney left Mr. Shermans firm. The mother did not turn 18 until March 18, 2005. Mr. Sherman informed Ms. Krinsky that he intended to comply with section 317, subdivision (d) by providing notice to the client and obtaining court permission to allow the substitution. According to Mr. Sherman, Ms. Krinsky transferred cases at her will among the three units.

Ms. Fragasso spoke with Ms. Krinsky about the reassignment of cases. Ms. Fragasso explained it was necessary to confer with her clients about the transfer to a different firm and secure court permission that she be relieved as counsel of record. Ms. Fragassos declaration relates, Ms. Krinsky told me my concerns were without merit because the clients were not my clients, they were [the centers] clients. Ms. Fragasso was subsequently removed as director of her firm.

The foregoing demonstrates cases were moved from law firms to units and between units at Ms. Krinskys direction without securing court permission as required by section 317, subdivision (d).^[2] As noted, Ms. Krinsky objected to both Mr. Sherman and Ms. Fragasso communicating with their clients on the subject of who would be their lawyer. When Ms. Fragasso indicated she intended to communicate with her clients, she was fired. The mother presented evidence that most center cases involved conflicts of interest. According to Ms. di Donato, who worked for Mr. Sherman, after checking with the Mandel and Fragasso firms, she discovered two-thirds of her caseload involved conflicts of interests. Mr. Sherman stated that in as many as 50 percent of his firms cases, conflicts of interests were present that required the appointment of separate counsel. According to Mr. Sherman, in 2005, cases were moved by Ms. Krinsky from his law firm to the core unit. Ms. Fragasso declared that in 2005 cases were moved from her firm to the core unit at Ms. Krinskys direction.

Further, there was evidence legal secretaries would work in the different units. The October 20, 2005 operating procedures granted the executive leadership the sole authority to assign staff between the three litigation units. Finally, the purpose of the 2005 changes were described in the March 8, 2005 memorandum from the centers board of directors: Having considered the comments from [the center] staff, as well as the advice from our outside consultant and ethics counsel, the Board has concluded that the best interests of [the center] and its clients will be served by moving [the center] to a unified and more cohesive organizational structure. The March 8, 2005 memorandum contains phrases such as: transition to a new unified structure; movement to a new unified structure; benefits will flow from a cohesive organizational structure; the centers unified entity; and move the organization in the directions of a unified structure. Further, the March 8, 2005 board of directors memorandum contemplated the future movement of lawyers from conflict firms to the core unit. As late as March 2006, lawyers in unit 2 were directed to secure expense approval from the head of unit 1, Ms. Mandell. There was evidence the executive director considered each client to be represented not by a unit; but by the center.

The foregoing evidence,taken together and in its context, demonstrates a breakdown of legally mandated ethical restrictions over a period of time. Many of these events occurred while the mother was represented by what is now the core unit and immediately before the filing of the section 300 petition filed in this case. Cases, lawyers, and files were moved amongst the three units prior to the filing of the section 300 petition in this case. Moreover, while the mother was a center client, Ms. Krinsky secured access to confidential e-mails between lawyers for all three litigation units. The mandatory ethical restraints described in Castro and Christian had to be present in order for the center to represent litigants with conflicting interests. No doubt, the evidence was in conflict as to some of the foregoing matters. But the juvenile court found, [T]he declarations that supported the motion to recuse are more persuasive . . . . The juvenile court was free to reject Ms. Krinskys denials, and those of others, of past conduct and assertions that the ethical walls mandated by Castro were currently not in force. The juvenile courts factual resolution of the disputed evidence is controlling. There is no merit to the centers argument that the evidence of ethical breaches was vague or unpersuasivethere is substantial evidence, some of it is damningly specificand that ends the issue as to what are the controlling facts on appeal.

3. The pertinent legal authority and evidence concerning the breach of ethical walls

a. the narrow legal basis for proper representation by one law firm maintaining strict ethical separation of operating units

As noted above, the center and its predecessor have been representing dependent children and their families since January 22, 1990, as part of agreements with local and state agencies. The January 22, 1990 and July 1, 2005 agreements specifically recognized the conflict of interest potential. In accordance with the problems of representing multiple clients with conflicting interests, the center was bound to operate within specific and mandatory guidelines for maintaining client confidentiality and adherence to rules of professional conduct. In addition, those provisions required the existence and strict maintenance of ethical walls. The contractual arrangement encompassing those provisions and procedures was thoroughly examined and survived a 1991 challenge in the case of Castro v. Los Angeles County Bd. of Supervisors, supra, 232 Cal.App.3d at pages 1435-1445.

In Castro, the contractual arrangement for Dependency Court Legal Services, Inc. to provide multiple party representation was upheld by Division Three of this appellate district. Our Division Three colleagues concluded in part that Dependency Court Legal Services, Inc. was in fact three distinct law firms which had been structured to have only minimal contact with each other. (Castro v. Los Angeles County Bd. of Supervisors, supra, 232 Cal.App.3d at pp. 1441-1442.) The executive directors role was strictly an administrative one with no overlapping duties involving legal activities or representation. (Id. at pp. 1436-1437.) Moreover, there was no evidence that the ethical walls had been ineffective in avoiding conflicts of interest. (Id. at pp. 1438, 1440.) Our Division Three colleagues concluded that there was no actual or apparent impropriety resulting from the creation of the nonprofit corporation even though it might be representing multiple parties with conflicting interests in the same proceeding. (Id. at pp. 1441-1445.) It must be emphasized our Division Three colleagues holding was premised on the aforementioned operating rules requiring: three separate and autonomous groups; an executive director with only an administrative function unrelated to providing legal representation; separate files; and separate staff and attorneys. (Id. at pp. 1436-1438.)

Similarly, in People v. Christian, supra, 41 Cal.App.4th at pages 993-1002, a defendant argued that he was denied conflict free representation because the trial court permitted the alternate defenders office in Contra Costa County to represent him. This occurred at the same time a codefendant was represented by the Contra Costa County Public Defenders Office. (Id. at p. 989.) Christian outlined the Contra Costa County system of the legal representation of indigent defendants under the structure challenged by the defendant. Christian noted that the structure was similar to the one that had been challenged in Castro as follows: the alternate defender office was established by the county in response to escalating costs; the public defender promulgated a policy statement that articulated the nature of the alternate defender office; the alternate defender office is a formal branch of the Contra Costa County Public Defenders Office but operates autonomously with a separate supervising attorney who is responsible for directing, coordinating, and evaluating its own staff attorneys; the supervising attorney is solely responsible for providing guidance to and determining litigation strategies; the public defender exercised no control or influence over the alternate defender office; the public defender had no access to client files or client confidences; the public defender could make changes in salary or working conditions of staff only upon the specific recommendation of the alternate defender office supervising attorney; the offices were physically separate; the case files had separate numbers; the keys to the different offices were separate; the public defender did not have keys to the offices of alternate defender office and vice versa; the two offices had separate communications networks with its own separate telephone numbers, computer equipment, and facsimile transmission machines; the two offices had separate library facilities; staff were advised and required to maintained client confidences; and the files were housed separately so as to be inaccessible to the attorneys and staff from the different offices. (Id. at pp. 992-993.) Christian concluded that the ethical walls utilized in Contra Costa County were sufficient to avoid conflicts of interest. (Id. at pp. 998-999.)

4. No abuse of discretion occurred

Having found that the separate operating units did not exist at times pertinent to the prior representation of the mother in this case, the juvenile court was required to decide whether disqualification was warranted. Both the mother and the child assert that the juvenile court was required to disqualify the center. After the center was disqualified, a panel attorney was appointed to represent the child. On appeal, the California Appellate Project-Los Angeles assigned counsel to represent the child. Appointed appellate counsel, after consultation with the panel attorney assigned to represent the child, has filed a brief urging that the disqualification order be affirmed.

The Supreme Court held: A trial courts authority to disqualify an attorney derives from the power inherent in every court [t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto. (Code Civ. Proc.,  128, subd. (a)(5).) (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at p. 1145; accord, City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th at p. 846; City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17, 23.) Attorneys have mandatory professional duties to avoid conflicts of interests in representing different clients with adverse interests. (Rules of Prof. Conduct, rule 3-310; City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th at p. 846; Flatt v. Superior Court (1994) 9 Cal.4th 275, 282, & fn. 2; People v. Baylis (2006) 139 Cal.App.4th 1054, 1064.) In order to protect the administration of justice and the integrity of the bar, a court will enforce an attorneys professional duty to avoid conflicts of interest by disqualifying counsel if necessary. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at pp. 1145-1146; Flatt v. Superior Court, supra, 9 Cal.4th at pp. 283-284.) A court is required to protect the publics perception of the judicial process and bars integrity but also the clients right to ethical representation of counsel. (City and County of San Francisco v. Cobra Solutions, Inc., supra, 38 Cal.4th at p. 846; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at pp. 1145-1146; Flatt v. Superior Court, supra, 9 Cal.4th at pp. 283-284.)

A conflict of interest may be precipitated by an attorneys successive representation of clients with opposing interests. (Flatt v. Superior Court, supra, 9 Cal.4th at pp. 283-284; People v. Baylis, supra, 139 Cal.App.4th at p. 1064.) The main fiduciary obligation at risk when successive representation occurs is that of confidentiality. (City and County of San Francisco v. Cobra Solutions, Inc., supra, 38 Cal.4th at p. 846; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at p. 1146; People v. Baylis, supra, 139 Cal.App.4th at p. 1065.) The confidentiality obligation is protected by Business and Professions Code section 6068, subdivision (e)(1), which states, It is the duty of an attorney . . .  [] (e)(1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. Rules of Professional Conduct, rule 3-310(E) protects the confidentiality duty by providing, A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment. Rules of Professional Conduct, rule 3-310(E) is designed to protect client confidentiality which survives the termination of the attorneys representation. (Bus. & Prof. Code,  6068, subd. (e); City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th at p. 846; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at p. 1147; Pound v. DeMera DeMera Cameron (2005) 135 Cal.App.4th 70, 77-78.)

The Supreme Court has explained a courts duty when faced with a successive representation scenario thusly: [The] enduring duty to preserve client confidences precludes an attorney from later agreeing to represent an adversary of the attorneys former client unless the former client provides an informed written consent waiving the conflict. [Citation.] If the attorney fails to obtain such consent and undertakes to represent the adversary, the former client may disqualify the attorney by showing a substantial relationship between the subjects of the prior and the current representations. [Citation.] To determine whether there is a substantial relationship between successive representations, a court must first determine whether the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation. [Citation.] If the former representation involved such a direct relationship with the client, the former client need not prove that the attorney possesses actual confidential information. [Citation.] Instead, the attorney is presumed to possess confidential information if the subject of the prior representation put the attorney in a position in which confidences material to the currentrepresentation would normally have been imparted to counsel. [Citations.] When the attorneys contact with the prior client was not direct, then the court examines both the attorneys relationship to the prior client and the relationship between the prior and the present representation. If the subjects of the prior representation are such as to make it likely the attorney acquired confidential information that is relevant and material to the present representation, then the two representations are substantially related. [Citation; see Farris v. Firemans Fund Ins. Co. (2004) 119 Cal.App.4th 671, 680 [material confidential information is that which is directly at issue in or has some critical importance to, the second representation].) When a substantial relationship between the two representations is established, the attorney is automatically disqualified from representing the second client. (City and County of San Francisco v. Cobra Solutions, Inc., supra, 38 Cal.4th at p. 847; Flatt v. Superior Court, supra, 9 Cal.4th at p. 283.)

There is no doubt that the childs and the mothers interests are conflicting. The child is a newborn, who needs the protection of the juvenile court to protect her from neglect or abuse. The mother had been depressed before and after the childs birth. The mother admitted using marijuana while she was pregnant. Further, the mother was upset that the child was a girl, as distinguished from a boy. Unit 1 of the center had previously represented the mother. Unit 2 of the center represented the childs sibling, Donna, in the litigation which led ultimately to the termination of the mothers parental rights. Unit 3 was assigned to represent the child. Ms. Krinsky, who had access to privileged information in all units, was personally involved in the movement of cases with conflicts of interest to the core unit of which she was a part. The current proceeding is substantially related to the former proceedings in which unit 1 of the center represented the mother. The prior proceeding involving the childs sibling concerned the mothers ability to care for a youngster. The mothers background, including her mental health history, are directly pertinent to the current dependency proceeding. Without abusing its discretion, the juvenile court could find information about each of these issues was obtained by lawyers and secretaries employed by the center while representing the mother in two prior dependency proceedings. Because there is a substantial relationship between the current action and the prior representation, it is presumed that confidential information was disclosed. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at pp. 1153-1154; Flatt v. Superior Court, supra, 9 Cal.4th at pp. 283-284; Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1294.) Thus, given the factual findings made by the juvenile court, disqualification was mandatory and no abuse of discretion occurred. Had the ethical walls mandated by Castro been maintained at a time when the mother was represented by the center and the juvenile court concluded they were enforced at present, I would obviously reach an entirely different conclusion.

TURNER, P. J.

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^[1] There is no evidence any blanket affidavits of peremptory disqualification were ever filed. In McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 538, footnote 13, our Supreme Court expressed its disapproval of the blanket filing of Code of Civil Procedure section 170.6 motions where no individual assessments of prejudice were made in each case. In Solberg v. Superior Court (1977) 19 Cal.3d 182, 203, our Supreme Court expressly reaffirmed its strong[] disapprov[al] of the practice. Ms. Krinskys declaration states a blanket affidavit policy which was not tethered to a particular case was adopted by the center. In fall 2003, Mr. Sherman stated Ms. Krinsky retained the sole authority to authorize the filing of affidavits on a blanket basis or in a class of cases. There is no evidence Ms. Krinsky or any lawyer affiliated with the center filed blanket affidavits in a class of cases.

^[2] Section 317, subdivision (d) states: The counsel appointed by the court shall represent the parent, guardian, or child at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, or child unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent, guardian, or the child in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship.